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Okla. AG asks Trump again to pardon soldier convicted of killing Iraqi prisoner

President Donald J. Trump addresses his remarks at the Wounded Warrior Project’s Soldier Ride D.C. event, Thursday, April 18, 2019, in the East Room of the White House. (Official White House Photo by Tia Dufour)
April 18, 2019

The Oklahoma Attorney General has renewed his efforts for President Donald Trump to pardon a former U.S. Army soldier who was convicted in 2009 of killing an Iraqi prisoner.

Former Lt. Michael Behenna was convicted of “unpremeditated murder in a combat zone” after he killed an Iraqi prisoner who was suspected to be a terrorist from al Qaeda, the Associated Press reported Thursday.

Behenna is slated to remain on parole until 2024. He served five years in prison before he was paroled in 2014.

The letter, dated Monday, is addressed to Attorney General William Barr from Oklahoma Attorney General Mike Hunter, who also wrote a letter to President Trump.

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“Early last year, I wrote you to express my support for the pardon of former Army First Lieutenant Michael Behenna.
I want to re-emphasize my full support for Behenna’s pardon,” Hunter wrote to Trump on Monday. “[…] I also want to alert you to significant concerns I have about the current federal regulations – and federal practice – governing the official pardon application process. As I have detailed in a letter to Attorney General Barr, I believe the federal regulations unduly restrict your broad Constitutional power to show mercy and issue pardons.”

Hunter initially requested the pardon in February 2018 and is renewing it now.

In his letter to Barr, Hunter said, “For the past year, I have publicly supported the effort to secure a Presidential pardon for [Behenna], an Oklahoma native. Behenna was released from prison in 2014 after serving five years in prison for shooting a suspected terrorist in Iraq while attempting to track down those responsible for an IED that killed two of his men.”

He continues and details his concerns for how the Justice Department handles pardon requests, saying the procedures “unduly inhibit the President’s Constitutional pardon power.”

“As you know, Article II, Section 2 of the Constitution gives the President nearly absolute authority to ‘grant Reprieves and Pardons for Offenses against the United States.’ Despite this extremely broad bestowal of power, DOJ regulations severely restrict those who can officially apply for pardons,” Hunter writes. “Perhaps most significantly, the regulations state that ‘[n]o petition for pardon should be filed until the expiration of a waiting period of at least five years after the date of release of the petitioner from confinement’ and that ‘no petition should be submitted by a person who is on probation, parole, or supervised release.’ […] This prevents a large segment of eligible persons from officially applying for a pardon.”

Hunter points out that the nearly 200,000 inmates currently incarcerated would be excluded from applying for a pardon.

“And persons serving life sentences, though unlikely candidates for pardon, appear to be completely barred from applying, ever. The more fortunate still must wait years to apply, even if they are out of prison and behaving in an exemplary fashion,” he points out. “Mr. Behenna, for example, was informed by the DOJ that he cannot apply until 2024 – even though he was released in 2014 – because he is still on parole.”

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“I would strongly encourage you to withdraw or amend the current regulations to better reflect the President’s broad pardon power under the Constitution,” Hunter adds. “Some regulations, obviously, are going to be necessary. But regulations that effectively eliminate the ability of many of those eligible to even apply for a pardon through official channels are contrary to the Constitution’s design and wrongly restrict the President’s ability to be merciful.”